KUALA LUMPUR (May 14): Solidariti Anak Muda Malaysia (SAMM) president Badrul Hisham Shaharin @ Chegubard and two others have been once again granted a discharge not amounting to acquittal for not giving adequate notice to the police for their public assembly on New Year’s eve.


Kuala Lumpur Sessions Court judge Ahmad Bachek decided that he was bound by the Court of Appeal decision on April 25 which declared that Section 9(5) of the Peaceful Assembly Act (PAA) 2012 which penalises organisers of peaceful assembly with a RM10,000 fine was null and void.


“I am bound by the Court of Appeal decision and this charge is groundless. Hence, (they) are discharged. As this court has no jurisdiction to charge without evidence, (they) are discharged not amounting to acquittal,” he said.
Ahmad categorised his judgment to two major grounds containing three important points.
Appeal Court’s decision is retrospective, Section 9(5) bad law from the start
The most pertinent among the three points was that the appellate court’s decision was retrospective, meaning that Section 9(5) was bad law even when PAA came into force.
“It now begs the question not whether the decision of the Court of Appeal is retrospective in nature since the Court of Appeal is silent in that they didn’t mention the declaration of unconstitutionality … from the very moment that provision becomes law, or otherwise (ab initio).
“As the Court of Appeal was silent on effective date of the declaration of the unconstitutionality of Section 9(5) … it is my considered opinion that it is effective ab initio,” he ruled.
Ahmad also addressed counsel Gobind Singh Deo’s submission last week that the court has no jurisdiction to hear a plea from the accused as per Section 121 of the Federal Constitution.
Court does have jurisdiction to hear matter, charges read and plea recorded
In his judgement, Ahmad ruled that the court does in fact have jurisdiction to hear the matter and proceeded to ask for the charge to be read to all three activist and pleas to be taken. Last week, before the charge was read Gobind had made his submissions arguing that it was groundless to charge and take a plea.
Citing previous court precedence, Ahmad ruled that Section 63 of the Subordinate Court Act 1948 empowers the Sessions Court to hear and try all cases other than offences punishable with death. Section 64 allows the Sessions Court to pass any sentence authorised by law other than the death sentence.
“I can see no reason why this court has no jurisdiction to try this offence which is only a summons case that carries a penalty of a fine not exceeding RM10,000,” he said.
The charge was then read to the trio and all three pleaded not guilty.
Before pleading not guilty, Chegubard gave a short speech about selective prosecution by the government. Ahmad warned Chegubard calmly and told him not to make any “political speeches” in court.
Chegubard argued that he was merely exercising his right of freedom of speech and pleaded not guilty.
Judge agrees with counsel that present charge groundless

Ahmad also agreed with Gobind’s submission last week that since the Court of Appeal has declared Section 9(5) null and void, the present charge over Chegubard and the rest were “groundless”.


Deputy Public Prosecutor (DPP) Suhaimi Ibrahim had argued last week for a postponement as the AG was appealing the Court of Appeal’s decision.


He told the court today that the Appeal has been set for May 27 at the Federal Court.


However, in his judgement Ahmad ruled that the appeal was inconsequential to the current case as it was not a reasonable ground of postponement such as no availability of witnesses among others, neither can the Sessions Court speculate the outcome of the matter which has yet to be heard.


On April 28, Sessions Court judge Azman Mustapha following the appellate’s court landmark decision had discharged the trio not amounting to acquittal, despite this they were recharged.


They were initially charged under Section 9(1) of the PAA which is punishable under Section 9(5) carrying a fine of RM10,000 for failure to inform the authorities 10 days before the 2013 New Year’s eve “Turun” rally.


This was the AG’s second attempt to re-charge peaceful assembly activists following the failure to re-charge Selangor state assembly deputy speaker Nik Nazmi Nik Ahmad on May 6.


Gobind: Decision is signal to AG to stop re-charging


Speaking to reporters later, Gobind said that the decision was a signal sent to the Attorney General (AG) Tan Sri Ghani Pattail to stop re-charging under laws which are considered unconstitutional.


“He should respect the Court of Appeal decision and stop charging persons with offences which have been declared unconstitutional. It is a complete and utter disrespect by the AG,” he said.


Another counsel for the trio, Eric Paulsen echoed this sentiment adding that he will take instructions from his clients on whether to sue the AG personally as his actions to re-charge based on a law which no longer exists is “unacceptable and amounts to harassment”.


He also clarified that his side has yet to receive the petition of appeal by the AG on the Court of Appeal decision.


“We are not even sure on what grounds are they appealing. We are confident that the Court of Appeal decision was an excellent one and it will be upheld by the Federal Court”.